MSPB blocks agencies’ attempts at historical revisionism


Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

Historical revisionism can be dangerous. Revisers often gloss over or skew facts to create a narrative that justifies their agenda. And lately, the Merit Systems Protection Board (MSPB) has been catching federal agencies engaging in historical revisionism when attempting to justify different penalties imposed on similarly situated employees.

Take, for example, the recently decided case of Ellis v. U.S. Postal Service (2014). In this case the MSPB blocked the agency’s attempt to justify the removal of the appellant, a customer service supervisor, by exaggerating the differences between the appellant’s misconduct and the similar misconduct of another employee.

In Ellis, the agency demoted and reassigned the appellant, who had been charged with unacceptable conduct – misrepresentation of mail volume reports. This charge was based on the appellant’s inflation of mail volumes on certain routes over two months. Although the Board upheld an MSPB judge’s initial decision that the appellant intentionally misrepresented mail volumes, it mitigated the demotion/reassignment penalty because of a lighter penalty imposed on a similarly situated supervisor.

In challenging his penalty, the appellant in Ellis pointed to a similarly situated supervisor who had been punished with a letter of warning and a geographic reassignment for his misrepresentation of employee work records. The Board said this other supervisor’s offense was “essentially the same offense” as the misrepresentation of mail volume records.

During the hearing for Ellis, the agency’s witnesses tried to paint the appellant’s misconduct as far more serious than that of the similarly situated supervisor, who inadvertently imputed the incorrect information into a database. One witness, according to the MSPB, “likened the difference between the misconduct by those supervisors and the appellant’s misconduct as akin to the difference between manslaughter and murder.” The Board, however, rejected the agency’s “post hoc re-characterization,” noting that the similarly situated supervisor had intentionally falsified official records and neither acknowledged nor expressed remorse for his actions. Consequently, the Board ordered the agency to reinstate the appellant to his EAS-17 position and to issue him a letter of warning rather than reduce his grade.

Although it was not mentioned in Ellis, this case reminded me of a decision the U.S. Court of Appeals for the Federal Circuit had delivered while I was chairman of the Board. In Williams v. Social Security Administration (2009). Unlike Ellis, the revisionist in this case was actually the appellant, who had participated in a tax fraud and challenged his removal by pointing out the agency had actually re-employed the perpetrator of the crime. The Federal Circuit said that if the agency did in fact re-employ the more culpable employee and removed the employee, “that could have shifted the balance.” But during oral arguments before the court, a government attorney explained that the agency removed the perpetrator when his fraud was discovered. When he was criminally charged, the agency rescinded the removal and indefinitely suspended him, though he was removed again after he was convicted. This information, however, was not included in the record before the MSPB, prompting the court to remand the case so the Board could “develop, as fully as possible, the facts” necessary to properly analyze the disparate penalty claim.

Last year, Williams’s requirement for a fully developed record for disparate penalty analyses ended up saving the job of the appellant in Broccolo v. Department of the Treasury (2013). The agency had removed the appellant because she inappropriately claimed unemployment compensation for seven weeks. An MSPB judge affirmed the agency’s removal decision, stating, “none of the comparators involved multiple, repeated applications for unemployment compensation over several weeks.”

However, on appeal, the appellant in Broccolo identified two more comparators. One of them had inappropriately claimed unemployment benefits on two occasions for a total of three weeks. This comparator was suspended for two weeks for the first offense and 60 days for the second, though the latter offense initially attracted a removal proposal. After reviewing the more fully developed record, the Board rejected the agency deciding official’s assertion that the appellant was the “only repeat offender with multiple weeks of unemployment compensation claimed to which she was not entitled.” Finding the employee with the lighter penalty to be similarly situated and that the agency “failed to prove a legitimate reason for the difference in treatment,” the Board mitigated the appellant’s removal to a 60-day suspension.

The truth is out there, and to find it federal employees may need the assistance of an experienced federal employment law attorney. Federal employees should not let agencies end their careers by revising history.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at


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